At a hearing in Cambridge, Mass., the five FCC commissioners question Comcast Executive Vice President David Cohen on his company's practice of delaying peer-to-peer file-sharing traffic during congested times.
Anne Broache/CNET News.com

Through pointed questioning at a public hearing at Harvard Law School here, Martin, a Republican, seemed to be pushing a two-pronged agenda: Internet service providers like Comcast should be as transparent as possible about manipulating network traffic, and consumers should have the freedom to, in effect, get what they pay for.

But at the end of the event, which, all told, lasted nearly six hours, Martin told reporters he still hadn't made up his mind about whether Comcast had done anything more than "reasonable" network management.

The chairman was also unable to predict when the Commission would reach a decision on Comcast's conduct and the broader question of constraints on network operators' traffic-shaping practices, except to say, "I think it's important we try to act very quickly."

The whole debate is an extension of the years-old tussle over whether Net neutrality regulations, which would prohibit network operators from prioritizing traffic as they wish, are necessary to safeguard the Internet's historically open architecture.

Congress is also continuing to consider such moves. Democratic Rep. Ed Markey (D-Mass.), whose district lies near the site of Monday's hearing, has proposed a new bill that would discourage, though not outright prohibit, Internet service providers from engaging in "unreasonable discriminatory favoritism" of content on their pipes. He warned commissioners in a speech at the start of Monday's event to take with a grain of salt any broadband providers' professions of "reasonable" network management in the interest of consumer welfare.

Martin has said in the past that he doesn't believe there's any need for new regulations, be he warned at the outset of Monday's hearing that the commission was taking the allegations against Comcast "very seriously." (Martin has been known to clash with the cable industry on other issues, namely the idea of offering channels "a la carte," in his day.)

Earlier in the day, Martin first asked a series of questions to Gilles BianRosa, the chief executive of Vuze, a video-sharing Web site, in an apparent effort to establish that the service involves transfer of lawful content and does not hog bandwidth.

Then, after hearing from a panel of academics, public-interest group representatives, and Comcast and Verizon executives, Martin asked a series of questions designed to determine whether consumers are getting enough information about the quality of Internet service they're getting and its potential limitations. (None of the panelists, for the record, has ever managed networks, though a second panel in the afternoon consists of people with such expertise.)

He then turned to Comcast Executive Vice President David Cohen and asked why his company "thinks it's necessary to block" peer-to-peer file-sharing traffic when its customers "are acting within the constraints you sold them."

"Doesn't that undermine the arguments you're making?" Martin asked.

"It doesn't undermine the argument," Cohen replied. "I don't think we're restraining the customers from using the service in accordance with the way we're selling it to them."

Cohen went on to read from a list of frequently asked questions for customers, which he quoted as saying, "Comcast may on a limited basis temporarily delay certain P2P traffic when that traffic has or is projected to have an adverse effect on other customers' use of the service."

Martin questioned whether that sort of disclosure is detailed enough to give both Internet surfers and application developers the information they need.

Definitely not, said Marvin Ammori, general counsel for the public-interest group Free Press, which has petitioned the FCC to declare that degrading any Internet applications is a violation of U.S. broadband policy.

"It's not clear when the high periods of congestion are, what they mean by delay, and if I were trying to design software to that...I'm not sure how I'd do it," he told Martin.

Democratic commissioners Michael Copps and Jonathan Adelstein, who have called for nondiscrimination rules, also pressed the Comcast executive to justify his company's practices.

"Comcast does not block any Web site, application, or Web protocol, including peer-to-peer services, period," Cohen responded. "What we are doing is a limited form of network management objectively based upon an excessive bandwidth-consumptive protocol during limited periods of network congestion."

Republican Commissioner Deborah Taylor Tate came the closest to voicing reservations about new antidiscrimination rules for Internet service providers. She indicated barring broadband operators from managing their networks for any purpose much beyond defeating spam and viruses, as some public-interest groups have suggested, would be unprecedentedly broad and could be better addressed by greater transparency by the companies.

Commissioner Robert McDowell, a Republican, like the others, didn't indicate whether Comcast's behavior is acceptable network management. He did, however, suggest the company's techniques may raise separate questions about competition for video content delivery.

"I think if Comcast did not also provide video services," he said, "we would not be here having this debate."

Martin ended the question-and-answer session, which lasted more than two hours, by asking whether the FCC even has the authority to go after Comcast, should it decide the company's network management violates its broadband policy principles. The FCC declared in 2005 that customers have the right to use the content, lawful applications, and devices they wish on the networks they use.

Comcast's Cohen said he doesn't believe the FCC has the power to fine his company. But as for whether the regulators can force the cable operator to stop treating file-sharing traffic the way it does, he said, "I'm not 100 percent sure; I'll get back to you."

Martin told reporters after Monday's hearing that he continues to believe the FCC already has sufficient power to crack down on incidents of Internet discrimination without the enactment of new laws, just as it did a few years ago when a small North Carolina telephone company was accused of degrading a rival's VoIP (voice over Internet protocol) traffic.